376 Mass. 699 | Mass. | 1978
On January 5, 1977, the petitioners, Robert A. Consalvi and Edward C. Kelley, were arrested in the Commonwealth pursuant to formal demands by the Governor of Kansas for their rendition. See G. L. c. 276, §§ 11-20R. Accompanying these demands were papers including a complaint, subscribed by two Kansas law enforcement officers and sworn to before a Kansas magistrate, and an arrest warrant issued by the same magistrate, which recited his finding of probable cause to believe that the petitioners committed the offenses charged. Each petitioner filed for habeas corpus in accordance with G. L. c. 276, § 19. A judge of the Superior Court denied the relief sought. After review by the Appeals Court, Consalvi, petitioner, 5 Mass. App. Ct. 729 (1977), we granted an application for further appellate review.
The petitioners do not maintain that the papers submitted by the Governor of Kansas have been improperly authenticated or that they fail to comply on their face with the requirements of G. L. c. 276, § 14. Murphy, petitioner, 321 Mass. 206, 211-214 (1947). Nor is it argued that the petitioners are not the persons sought by Kansas. See Maldonado, petitioner, 364 Mass. 359, 362 (1973). Rather, the petitioners’ single contention on appeal is that the Fourth Amendment mandates an independent judicial finding of probable cause in advance of rendition — a determination they insist is absent in their cases.
Because we agree with the petitioners that rendition must be preceded by a judicial determination of probable cause, and for the reasons discussed below, we conclude that the petitioners should be discharged from custody.
The threshold question we face is whether the Fourth Amendment right to a judicial probable cause determina
The Kansas Code of Criminal Procedure, Kan. Stat. Ann. § 22-2302 (Weeks 1974), provides: "If the magistrate finds from the complaint, or from an affidavit or affidavits filed with the complaint or from other evidence, that there is probable cause to believe both that a crime has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue.” It is instructive to observe, however, that, according to the governing case law in existence at the time the instant warrant was issued, a properly verified complaint was
Our belief that the uncertainty attendant to such procedures is constitutionally unacceptable is underscored by a similar finding of the Supreme Court of Kansas. Passing on a habeas corpus petition identical to the ones offered here, the Kansas court held that it would not permit rendition in the absence of an independent probable cause determination in that State’s courts. Wilbanks v. State, 224 Kan. 66 (1978). In so holding, the court expressly "disapproved” its previous cases — Giddings, Woods, Addington — which had permitted the issuance of an arrest warrant on the mere authority of a verified complaint. Wilbanks v. State, supra at 75. Keeping in
Thus, since we cannot assume that the instant Kansas arrest warrant represents a judicial finding of probable cause that the petitioners committed the crimes charged, we must examine more fully the papers accompanying the Kansas extradition demands. The single relevant document is a lengthy and detailed complaint alleging that the petitioners were involved in the unlawful importation of marihuana with intent to sell. However, the complaint, treated as an affidavit, is incapable of supporting a finding of probable cause because it fails to state if these allegations are based on either the personal knowledge of the two officers or on information supplied by reliable informers. See Commonwealth v. Stevens, 362 Mass. 24, 26-28 (1972); Commonwealth v. Boswell, 374 Mass. 263, 268-269 (1978); Commonwealth v. Reynolds, 374 Mass. 142, 148 (1977). Although the Kansas magistrate might well have taken oral testimony from the officers supplying this necessary information, no evidence of such colloquies exists in the papers accompanying the rendition demands. Thus, on the basis of the present record, we are unable to permit rendition.
Because we find no basis for interstate rendition, the appropriate result in these cases is the immediate discharge of the petitioners. If they wish, Kansas authorities may, of course, bring new rendition proceedings.
Despite the result here, we do not intend to say that every failure of documentary presentation by a demanding State must necessarily result in discharge of the peti
Therefore, the petitioners are to be discharged forthwith.
So ordered.
The petitioners have been released on personal recognizance pending final disposition. For purposes of these cases we regard the petitioners as in the "custody” of the Massachusetts authorities. 8 Am. Jur. 2d Bail & Recognizance § 4 (1963). See Bitter v. United States, 389 U.S. 15, 16 (1967); Commesso v. Commonwealth, 369 Mass. 368, 376 (1975).
Accord, Ierardi v. Gunter, 528 F.2d 929 (1st Cir. 1976); United States ex rel. Grano v. Anderson, 318 F. Supp. 263 (D. Del. 1970), aff'd 446 F.2d 272 (3d Cir. 1971); Kirkland v. Preston, 385 F.2d 670 (D.C. Cir. 1967) (Wright, J.); Wellington v. South Dakota, 413 F. Supp. 151 (D.S.D. 1976); Montague v. Smedley, 557 P.2d 774 (Alas. 1976); Pippin v. Leach, 188 Colo. 385 (1975); Brode v. Power, 332 A.2d 376 (Conn. Super. Ct. 1974); Batton v. Griffin, 240 Ga. 450 (1978); Struve v. Wilcox, 99 Idaho 205 (1978); Wilbanks v. State, 224 Kan. 66 (1978); In re Doran, 401 Mich. 235 (1977); Sheriff v. Thompson, 85 Nev. 211 (1969); Smith v. Helgemoe, 117 N.H. 91 (1977); People ex rel. Cooper v. Lombard, 45 App. Div. 2d 928 (N.Y. 1974); Commonwealth ex. rel. Marshall v. Gedney, 478 Pa. 299 (1978); Locke v. Burns, W. Va. (1977) (238 S.E.2d 536 [1977]); State v. Towne, 46 Wis. 2d 169, 171 (1970); Note, Interstate Rendition and Probable Cause, 11 Suffolk U.L. Rev. 482, 487 (1977); Note, Interstate Rendition and the Fourth Amendment, 24 Rutgers L. Rev. 551, 574-585 (1970). Contra, Garrison v. Smith, 413 F. Supp. 747 (N.D. Miss. 1976); Application of Stewart, Ariz. App. (1977) (573 P.2d 504 [1977]); In re Golden, 65 Cal. App. 3d 789, appeal dismissed and cert. denied, 434 U.S. 805 (1977); Wellington v. State, S.D. (1976) (238 N.W.2d 499 [1976]); Vetsch v. Sheriff of Spokane County, 14 Wash. App. 971 (1976).
But see Kirkland v. Preston, supra at 674; United States ex rel. Grano v. Anderson, supra at 266; Montague v. Smedley, supra at 778; Pippin v. Leach, supra at 389-391; Struve v. Wilcox, supra at 213; Wilbanks v. State, supra at 80-81.
By contrast, the court in Ierardi, supra, rejected a Florida rendition demand predicated on a prosecutor’s information and unsupported by any further evidence of probable cause.
We do not believe that this procedure will create any real inconvenience to demanding States or cause rendition proceedings to be any less efficient. "Under present arrangements, papers must in any event be prepared in the demanding state, including (in the absence of an indictment) an affidavit and some form of judicial process, and under
Some courts treat an arrest warrant as conclusively establishing a prior determination of probable cause. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 116 n.18 (1975); Commonwealth ex rel. Marshall v. Gedney, 478 Pa. 299, 312 (1978).
See the Kansas Code of Criminal Procedure, Kan. Stat. Ann. § 22-3201 (Weeks Supp. 1977), which provides that "[t]he complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient.”